[Senate Hearing 110-969]
[From the U.S. Government Printing Office]
S. Hrg. 110-969
NOMINATIONS OF KATHRYN A. OBERLY AND ALFRED S. IRVING JR.
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HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON THE
NOMINATION OF KATHRYN A. OBERLY TO BE AN ASSOCIATE JUDGE, DISTRICT OF
COLUMBIA COURT OF APPEALS, AND ALFRED S. IRVING JR. TO BE AN ASSOCIATE
JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
__________
NOVEMBER 17, 2008
__________
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Beth M. Grossman, Senior Counsel
Kristine V. Lam, Professional Staff Member
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Jennifer L. Tarr, Minority Counsel
Trina Driessnack Tyrer, Chief Clerk
Patricia R. Hogan, Publications Clerk and GPO Detailee
Laura W. Kilbride, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Akaka................................................ 3
Senator Voinovich............................................ 3
Prepared statements:
Senator Akaka................................................ 66
Senator Voinovich............................................ 67
WITNESSES
Monday, November 17, 2008
Hon. Hillary Rodham Clinton, U.S. Senator from the State of New
York........................................................... 1
Hon. Eleanor Holmes Norton, Delegate of the District of Columbia,
U.S. House of Representatives.................................. 2
Kathryn A. Oberly to be an Associate Judge, District of Columbia
Court of Appeals............................................... 6
Alfred S. Irving Jr. to be an Associate Judge, Superior Court of
the District of Columbia....................................... 7
Alphabetical List of Witnesses
Clinton, Hon. Hillary Rodham:
Testimony.................................................... 1
Irving, Alfred S. Jr.:
Testimony.................................................... 7
Biographical and professional information.................... 39
Norton, Hon. Eleanor Holmes:
Testimony.................................................... 2
Oberly, Kathryn A.:
Testimony.................................................... 6
Biographical and professional information.................... 13
Responses to additional questions from Senator Coburn........ 36
NOMINATIONS OF KATHRYN A. OBERLY AND ALFRED S. IRVING JR.
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MONDAY, NOVEMBER 17, 2008
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:36 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Daniel K.
Akaka, presiding.
Present: Senators Akaka and Voinovich.
Senator Akaka. This hearing will come to order. I want to
say good afternoon to everyone and to welcome our nominees
along with their family and friends to the Committee today. I
am glad to have Senator Clinton here and I am going to ask her
to make her statement as we begin.
Senator Clinton, it is an honor to have you here.
STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Clinton. Thank you very much, Chairman Akaka. I
appreciate greatly the opportunity to be here to introduce
Kathryn Oberly as you consider her nomination to be an
Associate Judge on the District of Columbia Court of Appeals.
I have known Ms. Oberly most of my life and I have come to
admire her as a friend and respect her for her many
achievements in both the public and the private sectors. We are
from the same suburb of Chicago, called Park Ridge, and we
attended the same Methodist church, and even then I could see
her proclivities for arguing the finer points of the law. After
graduating from the University of Wisconsin Law School, she
served as a law clerk to the Hon. Donald P. Lay of the U.S.
Court of Appeals for the Eighth Circuit.
And at the conclusion of her clerkship, she began 12 years
at the U.S. Department of Justice, first as a trial attorney in
the Appellate Section of the Land and Resources Division. Then
she rose to become Special Assistant to the Attorney General in
the same division, handling litigation, advising on matters of
policy, and drafting legislative proposals. As an Assistant to
the Solicitor General, she briefed and argued more than a dozen
cases before the Supreme Court of the United States.
And since leaving the Justice Department, she has broadened
her experience in the private sector, first as a partner in a
major law firm and then as General Counsel at Ernst and Young.
She will bring the perspective of all of those years of
experience in both the public and the private sides of the law,
as well as being a mother who raised her son while working and
achieving so much in her professional career.
On a personal level, I know she has the calm and level-
headed temperament of a judge and she will bring the
understanding of the District of Columbia, where she has lived
for more than 30 years and has been very much a part of this
community. Her nomination is the result of the careful and
nonpartisan process of the D.C. Judicial Nominating Commission,
which as you know recommends nominees on the merits to the
White House to fill key judicial posts.
The D.C. Court of Appeals has all of the jurisdiction of a
State Supreme Court, and the cases that come before these
justices run the gamut, affecting all aspects of life in the
District. Ms. Oberly will bring her varied and rich experiences
in the business community, as an appellate lawyer in the public
sector, as an active member of the legal community, and as a
devoted member of this community in which she lives to consider
the cases before her fairly and thoroughly on behalf of all who
come before the court.
I am pleased that Senator Voinovich is here, and I really
consider it an honor to commend this nominee to this Committee.
She is an extraordinarily accomplished lawyer, a very good
person with wonderful values who will serve the people of the
District of Columbia very well if she is given the honor of
being confirmed for this position. Thank you.
Senator Akaka. Thank you very much. It is an honor to have
you here to speak for her and it is good to hear about your
relationship. I thank you very much. I know how Senators are
always busy, so please feel free to leave when you want to.
Senator Clinton. Thank you very much.
Senator Akaka. Thank you.
I would like now to call on Delegate Norton for her
statement.
STATEMENT OF HON. ELEANOR HOLMES NORTON, DELEGATE OF THE
DISTRICT OF COLUMBIA, U.S. HOUSE OF REPRESENTATIVES
Ms. Norton. Thank you, Mr. Chairman. I very much appreciate
that you and my good friend Senator Voinovich, whom I am
pleased to see here, are taking advantage of this session to
confirm two more judges for the D.C. Superior Court.
I want to thank the Committee for your work in bringing the
number of judges back to the authorized amount. This is a very
busy court and we once again have 59 judges for the D.C.
Superior Court. While they were funded that way because of an
anomaly in the way in which the new Family Court Provision was
authorized, the Superior Court, itself, was not fully staffed,
and here are the two judges that the Committee has recommended
and who are the President's nominees.
I am very pleased to speak for Alfred Irving Jr., and to
say that I think he is especially well qualified because he
knows the court on which he has been nominated to serve. He has
been a magistrate on that court. Magistrate Irving, however,
came to that position with extensive trial experience in two
national law firms and as a senior litigator at the Justice
Department. He is the kind of magistrate that I am sure, when
he applied, the District was very pleased to have for his
extensive trial work throughout his career. He graduated from
Georgetown Law Center and is more than qualified to serve as a
judge on the court that he has appeared before. He has
appeared, as well, before, and is a member of the bar, of a
number of Federal courts. He is an exceptionally well-qualified
nominee and I am pleased to offer him without reservation to
you this afternoon.
Senator Akaka. Thank you very much, Delegate Norton, for
your introduction. We are always glad to hear from friends, and
it will certainly make a difference in what happens here. I am
glad that we had the time to hold this hearing and hopefully we
can move these nominations as quickly as we can. Thank you so
much for coming.
Ms. Norton. Thank you, Mr. Chairman.
OPENING STATEMENT OF SENATOR AKAKA\1\
Senator Akaka. Today, the Committee on Homeland Security
and Governmental Affairs meets to consider the nominations of
Kathryn Oberly to be an Associate Judge on the District of
Columbia Court of Appeals, and Alfred Irving Jr. to be an
Associate Judge on the District of Columbia Superior Court.
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\1\ The prepared statement of Senator Akaka appears in the Appendix
on page 00.
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I am pleased to be holding this hearing today to consider,
as we have heard, such distinguished and well-qualified
candidates. I have been impressed with the caliber of the
recent nominees to the District of Columbia bench, and Ms.
Oberly and Judge Irving are no exceptions to that pattern.
Normally, we would not move forward with nomination
hearings so late in the session. However, these two nominees
clearly are well qualified and we have not identified any
potential concerns that warrant further investigation. That is
why we are working hard to consider these nominations in the
final days of the 110th Congress.
Both of the nominees before us have impressive legal
backgrounds. Ms. Oberly currently is General Counsel of Ernst
and Young. She has served with distinction in the public sector
at the Department of Justice as well as the private sector, and
she has argued numerous cases before the U.S. Supreme Court.
Judge Irving currently is a magistrate judge on the D.C.
Superior Court and he also spent 14 years as an accomplished
attorney in the Department of Justice.
I want to now call on Senator Voinovich for his opening
statement. Senator Voinovich.
OPENING STATEMENT OF SENATOR VOINOVICH\2\
Senator Voinovich. Thank you, Mr. Chairman. It is unusual
that we are having this hearing today. As you know, we are kind
of running out of time and this week we will be here for who
knows how long, but not long. I was pleased that Senator
Lieberman and Senator Collins asked Senator Akaka and I to hold
this hearing as a hearing not of our Subcommittee, but of the
full Committee, and hopefully we will be able to vote these
nominees out of here and get this done before everybody tips
their hat.
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\2\ The prepared statement of Senator Voinovich appears in the
Appendix on page 00.
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I want to extend a welcome to the nominees. We appreciate
your time and your willingness to serve the District of
Columbia. It takes a unique individual to be a judge. Judges
have significant responsibilities of protecting citizens'
rights and liberties, as well as upholding and interpreting the
law. I know that, if confirmed, the two of you will do the very
best you can to uphold those high standards.
Senator Akaka and I have spent a great deal of time
reviewing the Federal Government's efforts to find the best and
brightest employees in an era when we are losing highly skilled
potential employees to a private sector that in many instances
offers higher salaries. I think the District of Columbia faces
similar challenges in its efforts to find the best and
brightest for its court system.
Mr. Chairman, I have reviewed both of these nominees'
biographical questionnaires and believe that the District of
Columbia has found two such individuals in these nominees. In
fact, you have heard me say on many occasions I wish that we
had the same quality of individuals in some of the other
jurisdictions throughout this country. I note that both of the
nominees have substantial experience in both the public and
private sectors in a number of different subjects.
Ms. Oberly has been nominated to the D.C. Court of Appeals.
She is currently the General Counsel for Ernst and Young and
was previously in private practice and also spent more than 10
years at the Department of Justice. I am not sure if you know
this or not, Ms. Oberly, but Ernst and Young started in
Cleveland, Ohio, and then they moved out to a lot of other
places, but were one of our great corporate citizens. When I
was mayor, they were of great help to me.
Judge Irving has been nominated to be an Associate Judge of
the D.C. Superior Court. As Eleanor Holmes Norton said, you
have been a magistrate, so you know what the bench is about and
you have had a tremendous amount of experience in the past.
Since the Chairman has done so, I won't go through all of
your qualifications and so forth.
Again, I want to thank both of you for being here today. I
know that you have members of your family here who are very
proud of you. I thank your families for the sacrifice that they
have made so that you can be here, and I will assure them, they
will be making more sacrifices because of the fact that you are
sitting on the bench.
Thank you, Senator Akaka.
Senator Akaka. Thank you very much, Senator Voinovich.
Both of the nominees have filed responses to a biographical
and financial questionnaire. Without objection, this
information will be made part of the hearing record, with the
exception of the financial data, which will be kept on file and
made available for public inspection in the Committee office.
Our Committee rules require that all witnesses at
nomination hearings give their testimony under oath. Therefore,
I ask each of you to please stand and raise your right hand to
take the oath.
Do you solemnly swear that the testimony you will give
before this Committee is the truth, the whole truth, and
nothing but the truth, so help you, God?
Ms. Oberly. I do.
Mr. Irving. I do.
Senator Akaka. Thank you. Please note for the record that
the witnesses answered in the affirmative.
Before we proceed with your statements, I understand that
the witnesses are joined by family members today and I was glad
to be able to shake your hands before we started. I would like
to take a moment to welcome them to the Committee. Ms. Oberly,
I am told that your husband, Haynes Johnson, your son, Michael,
your brother, Jim, and your sister-in-law, Louise, have joined
us today. Judge Irving, I understand that your parents, Alfred
Irving Sr., and Christine, are here today, as well. I want to
welcome them.
Ms. Oberly, if you will take a moment to formally introduce
your family and your friends who are here today, will you
please go ahead, and I will ask Judge Irving to do the same.
Ms. Oberly. Thank you, Mr. Chairman. I am very pleased to
be here and to have this opportunity. Obviously, I would like
to thank Senator Clinton for her very kind and warm
introduction. This is a very memorable day for me and made all
the more so by her willingness to take time out of her hectic
schedule and come here today to introduce me.
Of course, it is also very memorable for me that my family
members can be here with me, so I would like to have them be
acknowledged. Although you have done that, I would like to do
it a second time around. With me are my husband, Haynes
Johnson, my son, Michael Goelzer, my brother, Jim Oberly, and
my sister-in-law, Louise Miriam. They are here from California
and Minnesota today and I very much appreciate their efforts to
join me at this important event.
Senator Akaka. Thank you. Judge Irving.
Mr. Irving. Thank you, Senator Akaka and Senator Voinovich.
It is my great pleasure to introduce to you people who I
consider my angels. They have been supportive of me, some of
whom for my entire life. They have encouraged me and they have
loved me, two ingredients that I think that one needs during
one's existence in order to navigate the trials and
tribulations of life.
Those angels are Dr. Robert Benedetti, whom I consider one
of my staunchest supporters. Two other people, Alfred S. Irving
Sr., and Christine Irving, they have known and loved me from
day one. They celebrated their 50th wedding anniversary this
year, and my dad just celebrated his 75th birthday, so many
milestones that we are appreciative for and our blessings.
Also, my sister, Shelley Irving Biglow, and husband,
William, and my nephew, Brandon, are here. Also, Sonya Irving
Ross, my sister, and her children, Reneka and Rahmon. And I
have to say this about Rahmon, who is 13 years old, he is one
of the ``brainiacs'' in our family. He followed all of the
recent primary elections, both Democratic and Republican, the
conventions, and attended the voting with his family. I am very
proud of him.
My cousin, Tamika Irving Robinson, is here. My former
colleagues, Peter Flynn, from the Department of Justice, and a
very dear friend; and Judge Carol Dalton, and Judge Odessa
Vincent. Presiding Civil Judge, Stephanie Duncan-Peters, whom I
am in constant contact virtually throughout each day of the
week, and finally, our new Chief Judge of the Superior Court,
Lee F. Satterfield is here, offering their support and love.
Thank you.
Senator Akaka. Thank you very much for introducing all of
them, and again, I want to say welcome to all of you.
I will begin with asking each of you these questions that
we do before we hear your statements. I would like to ask each
of you, is there anything that you are aware of in your
background that might present a conflict of interest with the
duties of the office to which you are about to be nominated?
Ms. Oberly. No, Mr. Chairman.
Mr. Irving. No.
Senator Akaka. Do you know of anything, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Ms. Oberly. No, Mr. Chairman.
Mr. Irving. No.
Senator Akaka. Do you agree, without reservation, to
respond to any reasonable summons to appear and testify before
any duly constituted Committee of Congress if you are
confirmed?
Ms. Oberly. Yes, sir.
Mr. Irving. Yes.
Senator Akaka. Thank you very much for your responses, and
now I would like to ask Ms. Oberly for your personal statement.
TESTIMONY OF KATHRYN A. OBERLY TO BE AN ASSOCIATE JUDGE,
DISTRICT OF COLUMBIA COURT OF APPEALS
Ms. Oberly. Thank you, Mr. Chairman and Senator Voinovich.
I already introduced my family members, but I also would like
to acknowledge my friends and colleagues who are here in the
audience today. I would like to thank my dear friends, Lois
Schiffer and Mary Frances Pearson, for their supportive ears
during this process. I also thank my many colleagues from the
D.C. office of the Ernst and Young Legal Department who are
here today, as well as my senior deputy from New York, Bob
Cohen, and my administrative assistant of the past 17 years,
Karen Ballard, who is also here today. I have been very
fortunate to work with such talented professionals.
I would also like to thank Chief Judge Washington for
coming today. I know already that I am very lucky to have been
nominated to work with him and with the other outstanding
judges on the D.C. Court of Appeals.
Mr. Chairman, I am very grateful for the opportunity to
appear before the Committee today. I am deeply honored to have
been recommended by the D.C. Judicial Nomination Commission,
which I know considers many qualified candidates, and I am, of
course, extremely grateful to the President for having
nominated me to serve on the D.C. Court of Appeals.
I also especially thank this Committee for holding the
hearing today during such an incredibly busy and important time
here in our Nation's capital. I know that the Committee staff
has moved mountains to make this hearing possible at this late
stage in the 110th Congress and I do appreciate that.
I also would like to thank Scott Coffina and others at the
White House Counsel's Office who have been extremely helpful in
guiding me through the nomination and confirmation process, and
I do appreciate their assistance.
Mr. Chairman, as someone who has lived in the District of
Columbia her entire adult life, I would welcome the opportunity
to serve the District as a judge on the D.C. Court of Appeals.
If I am fortunate enough to be confirmed, I commit to devoting
my legal skills and energy to the work of the court on behalf
of the citizens of the District. I also commit to treating all
litigants with the respect and fairness necessary to maintain
the public's confidence in the court. If confirmed, I will
approach all matters that come before me with the highest
degree of impartiality and objectivity, and I will do my utmost
to ensure that all litigants feel that they have been accorded
the full and fair consideration that their matters deserve.
Thank you again for the opportunity to be here today and
for your consideration of my nomination, and I welcome any
questions the Committee may have.
Senator Akaka. Thank you. Judge Irving.
TESTIMONY OF ALFRED S. IRVING JR. TO BE AN ASSOCIATE JUDGE,
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Mr. Irving. Senator Akaka, thank you. I want to thank the
Committee on Homeland Security and Governmental Affairs for the
privilege of appearing before you and for your moving so
expeditiously with setting this hearing. I also wish to thank
the D.C. Judicial Nomination Commission for recommending me to
the President. I wish to thank the President for selecting and
nominating me to fill this vacancy that was created by the
retirement of Judge Mary Terrell. And I would like to thank
Congresswoman Norton for her kind introduction.
I would like to thank your staff for their professionalism
and for making this process palatable and very easy to
navigate. And finally, I, too, wish to thank Associate White
House Counsel Scott Coffina for all of his assistance, his
guidance, and his professionalism, as well. Thank you.
Senator Akaka. Thank you very much.
I have some questions, and I will then defer to Senator
Voinovich for his. But to both of you, you are very successful
attorneys who have handled complex, important cases for the
Department of Justice and elsewhere. My question to both of you
is, why did you decide to seek nomination to become a judge and
what contributions do you hope to make, if confirmed? Ms.
Oberly.
Ms. Oberly. Thank you, Mr. Chairman. As I mentioned in my
statement, this is my home, this is my community, and I have
enjoyed a very exciting and varied career in both the public
sector at the Justice Department and then in the private sector
thereafter. But I feel at this stage in my career, the way that
I can best use my legal talents is by giving back to the
District of Columbia in recognition of all that the District
has given me, and that is what I hope to do as a judge on the
D.C. Court of Appeals, to assist the court in its important
work for the citizens of the District, and I believe that is
perhaps one of the highest callings that a lawyer can, in fact,
do as a means of public service to her community. That is
exactly what I hope to do.
Senator Akaka. Thank you. Judge Irving.
Mr. Irving. Yes. I have been a resident of the District of
Columbia for approximately 27 years, so it is my home. It has
been my home all of my adult life, and I have always had an
interest in serving the people of the District of Columbia. As
a member of the D.C. Bar, I participated in the Bar's pro bono
programs, offering legal assistance to people who otherwise
could not afford that assistance.
In this last year and a little better on the bench, I have
concluded that this type of work suits my nature. I enjoy
resolving matters. I have learned many lessons from my parents
and one primary lesson is to treat others with dignity and
respect, and that has always been a practice of mine. I carry
those principles with me to the bench and I believe I have made
a significant difference in this last year and I would like to
continue that type of service.
Senator Akaka. Thank you.
Judge Irving, you have been a magistrate judge on the D.C.
Superior Court since July 2007.
Mr. Irving. Yes.
Senator Akaka. How has that position prepared you for being
an associate judge, what do you believe would be your biggest
challenge in transitioning from being a magistrate judge to an
associate judge, and how will you address that challenge?
Mr. Irving. Since, Senator, my becoming a magistrate judge,
I have served on essentially two calendars, the Collections and
Subrogation Calendar as well as the Tax Lien Foreclosure
Calendar. I also have served or presided over felony
presentments and misdemeanor arraignments every 2\1/2\ months.
So I have experienced quite a bit. I have worked hard. I have
been diligent. And I have taken my position very seriously.
With respect to how those situations have prepared me, I
have handled motions hearings. I have presided over trials, ex
parte proof hearings, and have also contributed to the Civil
Rules Committee, where I serve, as well as a subcommittee on
rules concerning small claims. So I believe all of those tasks
with which I have approached with much zeal and much energy and
much industry, all will serve me well as an associate judge.
One of the challenges that I have observed is the fact that
the numbers are increasing of pro se litigants. They come to
the court with special needs. They do not know how to navigate
the legal system, either procedurally or substantively, and
what the court has endeavored to do in the past years and what
I have endeavored to do on my calendars is to establish
resource centers that are managed by very skilled attorneys who
provide legal support pro bono to self-represented parties that
removes a lot of the mystery of self-representation, educates
them as to their rights, the likelihood of prevailing, and
whether they should explore settlement offers.
So pro se litigants prove to be a big challenge for the
court and will continue to be. As we move forward with
landlord-tenant cases, the numbers of pro se litigants are
increasing. As our aging population increases, there will be
increasing numbers of pro se litigants in probate and tax. So I
would say pro se litigants and their efforts to represent
themselves pose one of the greatest challenges for the court.
Senator Akaka. Thank you.
Ms. Oberly, I would like to ask you to address that issue,
as well. What do you anticipate your biggest challenge would be
in becoming a judge and how do you plan to overcome that
challenge?
Ms. Oberly. I have been fortunate to have a very diverse
career in my more than three decades of practicing law, so I
have certainly, in my Justice Department days, spent time
handling criminal matters and since then more civil matters.
But I recognize that it has been a long time since I have spent
as much time on criminal matters, for example, as the docket of
the D.C. Court of Appeals is likely to present to the judges
deciding those cases, and so I am fully prepared to roll up my
sleeves and get to work and learn what it is I need to get back
up to speed, changes in the law that have occurred, and I would
approach that the same way I have approached any other new
facet of my career over the past several decades where I find
myself dealing with new issues.
But I have never been afraid of hard work; I think that is
the way I've managed to master new areas in the past and it is
the way I will intend to do that on a go-forward basis if I am
so fortunate as to be confirmed.
Senator Akaka. Thank you.
Now let me call on Senator Voinovich for his questions.
Senator Voinovich. Ms. Oberly, I am sure you have appeared
before a number of judges and have observed a variety of
judicial temperaments. I would like you to discuss what you
believe to be the appropriate temperament and approach of a
judge.
Ms. Oberly. Thank you, Senator Voinovich. I think it is a
very important question, and I believe that it is critical that
litigants appearing before judges, no matter what the outcome
of the case, where almost by definition one side will be happy
and one side will be unhappy, should both go away feeling that
their matters have been given the full, careful, and fair
consideration that they deserve regardless of what the outcome
is, that they have been treated with respect, that their
arguments have been listened to, and that they have had the
opportunity for the judicial system to bring all of its hard
work and careful consideration to their matters so that they at
least leave the process feeling that the respect the process
should command was appropriately placed in the confidence of
the courts to do the right job for the citizens of the
District.
Senator Voinovich. I think that in my experience, on
occasion, we have had people that seemed, once they got to the
bench, to have lost all humility. [Laughter.]
Ms. Oberly. I have appeared before some of those people
from time to time, but I hope that I can remember those
appearances that I have had and make sure that I don't cause
litigants appearing before me to go away feeling that way.
Senator Voinovich. The other thing is, and you have already
mentioned it, you haven't had very much experience in terms of
criminal law and you are going to have to really brush up on
that. I think you know that.
Ms. Oberly. Right.
Senator Voinovich. And then on the rules and procedures of
the appeals court, you are going to have to also work hard. You
are going to have a lot of homework to do, I think, in the
beginning.
Ms. Oberly. That is true, although in my job as General
Counsel of Ernst and Young, I have been managing litigation in
courts all across the country, and while the rules obviously
vary somewhat from one court to another, the general procedures
and policies are not all that different. And so I need to be
totally current and familiar with D.C. Court of Appeals
procedures, and I intend to make sure that I am, but I don't
feel that I am approaching an environment in which I don't have
an awful lot of background experience with other courts that
operate in a similar fashion. So I hope that will help me get
up to speed faster.
Senator Voinovich. Does working with other appeals courts
around the country give you a pretty good idea of what you
ought to be doing?
Ms. Oberly. Yes.
Senator Voinovich. Judge Irving, I think it is wonderful
that these folks that come up and don't have a lawyer, you try
to work with them, but how do you handle that lawyer that comes
in and is not prepared to represent their client? How do you
deal with somebody like that?
Mr. Irving. That happens, Senator, more often than you
might imagine. Since taking the bench, what I have done is
taken a step-by-step approach, rather than hitting attorneys
with the shock that the rules do apply, that they are required
to follow the Rules of Civil Procedure and of Evidence, and
should know their cases much better than the judge, who has
spent the weekend preparing for the week's calendar. I have
strongly urged them to take the time to learn their cases
because the prior chief judge, in particular, with a management
team, instituted performance standards. And I take my position
very seriously and endeavor zealously to adhere to those
standards, one of which is to resolve matters as expeditiously
as possible.
I do recognize that there are challenges in attorneys'
lives, as well, that may cause them not to be as prepared in
one case as they would like to be. So it is a gradual
admonishment, if you are not going to be prepared this time, I
will give you a couple of weeks to be prepared and you should
come back prepared.
Senator Voinovich. Well, if that reputation gets around,
more of them will be prepared.
In your background, you talked about the backlog of cases,
motions, and other things that you dealt with. Tell me about
that a little bit, and do you expect that you are going to have
the same kind of a challenge as an associate judge?
Mr. Irving. Well, when I took the bench, there were matters
that for some reason or other were not resulted in a timely
fashion. There were matters that were several years old. And I
believe we have a much better computer tracking system so that
when a particular matter is not resulted a few months prior and
there is not a next event date set for that particular matter,
that matter shows up on what we call an exceptions report.
There are about four or five different case tracking reports
that I review on a weekly basis so that I can stay abreast of
what is ready to be acted upon and what is not.
The two calendars I manage involve very heavy filers. I
believe I have approximately 2,100 active cases. So it requires
not only a diligent, hard working judge, but also a team of
other folks, and I have had the support of both the chief judge
of the court as well as the presiding judge of the Civil
Division who have provided me with additional bodies to try to
work through the backlog and stay current with all matters that
are being filed currently.
So there are controls in place and there are people
available to the calendar to assist me in resulting matters
sooner than later. I believe we all, at the court, take our
duties seriously and do whatever we can with the resources that
we have to see to it that decisions are rendered speedily.
Senator Voinovich. Thank you.
Senator Akaka. Well, thank you very much, Senator
Voinovich.
I want to thank our witnesses also very much for your
statements. There are no further questions from me at this
time. Members of the Committee may submit additional written
questions for the record. The hearing record will remain open
until the close of business today for Members of this Committee
to submit additional statements or questions they may have.
Although time is very short in this Congress, I believe
that you both are very well qualified for the positions to
which you have been nominated. It would be a shame to leave the
D.C. courts with vacancies if we can fill them with nominees of
high caliber. It is my hope that the Committee and the Senate
will be able to act on your nominations as soon as we can.
I thank you and your families and friends very much for
being here today.
Do you have any further comment before we adjourn, Senator
Voinovich?
Senator Voinovich. No.
Senator Akaka. With that, this hearing is adjourned.
[Whereupon, at 3:17 p.m., the Committee was adjourned.]
A P P E N D I X
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